Embedded Payroll Service Agreement

Last updated March 29, 2024

ARBITRATION NOTICE: SECTION 35 OF THIS AGREEMENT CONTAINS TERMS THAT REQUIRE COMPANY AND GUSTO TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. COMPANY UNDERSTANDS THAT: (1) COMPANY WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, (2) COMPANY WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF COMPANY’S CLAIMS, AND (3) COMPANY MAY OPT OUT OF ARBITRATION IN ACCORDANCE WITH SECTION 35.

This Embedded Payroll Service Agreement (this “Agreement”) sets forth the terms and conditions under which Gusto, Inc. (“Gusto”) agrees to provide eligible companies (each, a “Company”) with certain payroll calculation, payment, tax filing and other related services (collectively, the “Embedded Payroll Service”) and may offer other services provided by third-party service providers (“Third Party Services”) made available through the payroll product (“Payroll Product”) provided by Company’s third-party platform provider (“Platform Provider”) for Company to make available to its eligible employees and independent contractors (each, an “Individual User”). The Embedded Payroll Service and any Third Party Services into which Company enrolls may be collectively referred to herein as the “Services”.

The “Company” is the organization, company, or business entity that you represent in accepting the terms of this Agreement. You represent that you are authorized to bind the Company to this Agreement.

1. Relationship to Platform Providers

   Company understands and agrees that (i) Gusto is a separate entity from the Platform Provider, (ii) Gusto cannot control and is not responsible for the Payroll Product (other than the Embedded Payroll Service), including the actions, errors, or omissions of Platform Provider, and (iii) Platform Provider’s liability to Company for any such actions, errors, or omissions is governed by the separate user agreement or terms between Company and Platform Provider (“Platform Provider Terms”).

   For clarity, unless otherwise stated in the Platform Provider Terms, this Agreement controls with respect to Gusto’s provision of Embedded Payroll Services to Customer and the Platform Provider Terms controls with respect to Platform Provider’s provision of the Payroll Product to Customer.

   As more explicitly set forth in the Platform Provider Terms, Company acknowledges that, in support of Platform Provider’s Payroll Product, Platform Provider may (i) share information about Company with Gusto, (ii) conduct activity on Company’s behalf in accordance with the Platform Provider Terms, and (iii) restrict, suspend, or terminate your ability to view, access or activate the Embedded Payroll Solution in accordance with the Platform Provider Terms.

2. Gusto Accounts and Administrators

   Company may be required to designate certain individuals who are authorized to provide information, enter into agreements, and take other actions on behalf of the Company in connection with the Embedded Payroll Services through Company’s account with Platform Provider (each an, “Account Administrator”), including but not limited to the ability to review, submit, amend, or cancel payrolls (each, a “Payroll Entry”). Gusto will use reasonable efforts to verify, but does not guarantee, that anyone who submits a Payroll Entry is an Account Administrator authorized to take such action.

3. Data Privacy

   Company understands and agrees that Platform Provider and Gusto may share data with one another in order to facilitate Company’s use of the Embedded Payroll Service. Unless otherwise agreed between Gusto and Platform Provider, Gusto’s use of data it receives from or through Platform Provider will be subject to and governed by Gusto’s Privacy Policy at https://gusto.com/about/privacy or the Platform Provider Terms. Platform Provider’s use of data it receives from Gusto will be subject to and governed by Platform Provider’s privacy policy.

   Company represents and warrants that it has obtained consent from Individual Users to share Individual User data with Gusto for purposes of providing the Embedded Payroll Service.

4. Service Fees

   Pricing for the Embedded Payroll Service is set by Platform Provider and invoiced in accordance with the Platform Provider Terms (the “Embedded Payroll Service Fees”). Company acknowledges that Gusto (i) does not control and is not responsible for the Embedded Payroll Service Fees charged to Company by Platform Provider; and (ii) may invoice Company directly for Services other than the Embedded Payroll Service that Company has elected to receive directly from Gusto for which Gusto charges a fee.

5. Payments

   Payments processed through the Embedded Payroll Service are transmitted by Gusto, Inc., a licensed money transmitter (NMLS ID: 1737896). For more information on Gusto’s licenses and the rights afforded to Company under applicable laws, please visit https://gusto.com/about/licenses.

6. Embedded Payroll Service

   Provided that Company remains eligible and in compliance with this Agreement, Gusto will provide Company with the Embedded Payroll Service, which includes (each, a “Payroll Feature”):

   (i) Calculating Company’s payroll and associated tax liabilities;
   (ii) Processing Company’s payroll and making related payments (each a “Payment”) to Company’s Individual Users, tax agencies, or other recipients;
   (iii) Withholding, filing, and remitting payroll tax Payments and filings;
   (iv) Completing certain tax documents, including original and amended tax filings on Company’s behalf;
   (v) Tracking paid and unpaid time off, hours worked, reimbursements and expenses and making certain related Payments; and
   (vi) Remitting certain wage garnishments on behalf of Company to local, state, or federal agencies.

   Gusto reserves the right to change, modify, or terminate any of the Embedded Payroll Services at any time with or without notice.

7. Identity and Bank Account Verification

   Gusto will review the information Company submits to Platform Provider or through the Embedded Payroll Service to verify information about Company. Gusto, either directly or through Platform Provider, may request additional identification documents or identify verifying information about Company. Gusto may, at its discretion, decline to offer Company the Embedded Payroll Service or any other Gusto services for any reason, including in the event that Company’s enrollment is not satisfactorily completed, Gusto is unable to satisfactorily verify the information provided by or on behalf of Company, or for any other lawful business reason.

   To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions like Gusto to obtain, verify, record, and monitor information that identifies Company’s business entity, authorized users, and Company’s designated responsible party (also referred to as Company’s “signatory”) (collectively, “Information Subjects”). Accordingly, Gusto will require Company to provide certain information to verify Information Subjects, which may include (but is not limited to) full name, address, date of birth, Company taxpayer ID, telephone number, email address, business entity ownership documentation, and other information necessary to identify Company’s entity information, Account Administrators, and/or signatory (“Identification Information”). Additionally, Gusto may also require Company to provide identifying documentation about Information Subjects, which may include passports, drivers licenses, or other government issued identification (“Identification Documents”). Gusto may also use Identification Information and/or Identification Documents provided by Company to confirm the identity of Account Administrators and their legal relationship to Company in the event of a dispute regarding Account Administrator(s)’ management of and/or access to the Embedded Payroll Service.

   Gusto will also need to collect, review and verify certain information about Company’s bank account (“Bank Account”) in order to confirm Company’s eligibility for the Embedded Payroll Service. This information includes identifying information about the Bank Account such as (but not limited to) the account number and financial institution name, identifying information about the Bank Account signatory, as well as information about payment recipients and transactions (“Company Banking Information”). Gusto will use Company’s Banking Information to conduct Know Your Customer (“KYC”) reviews and Sanctions Screening as described in Section 5 (“Know Your Customer and Sanctions Screening”) below, to verify Bank Account ownership, to verify that the Company is eligible for the Embedded Payroll Service (as determined by us in our sole discretion), and to confirm and share Company Banking Information with our service providers and/or Company’s Bank Account provider.

   Company represents and warrants that Company has the authority to share Identification Information, Identification Documents, and Company Banking Information with Gusto as set forth herein, and Company understands and agrees that Gusto will handle such information in accordance with our Privacy Policy or the Platform Provider Terms. Company further represents and warrants that all Identification Information, Identification Documents, and Company Banking Information provided to Gusto are truthful, accurate and complete, and that, except as permitted in these Payroll Terms, Company is not submitting such information on behalf of a third party. Company is responsible for ensuring that all Identification Information, Identification Documents, and Company Banking Information requested by Gusto is provided in a timely manner, and Company understands that failure to timely provide may result in Gusto being unable to provide Company with the Embedded Payroll Services and/or immediate termination of Embedded Payroll Services with or without notice and without liability to Company.

   Company authorizes Gusto to obtain information about Company as a business entity, and to report adverse business information about Company to third parties including but not limited to federal or state tax authorities. Gusto reserves the right to terminate Company’s access to the Embedded Payroll Services immediately with or without notice if Gusto is unable to verify Company’s satisfactory financial standing, or for any other lawful business reason (including, without limitation, reasons that are confidential to Gusto or which Gusto may not legally disclose).

8. Necessary Information and Authorizations

   Company must meet the below criteria and complete the below prerequisite actions (as applicable):

   (i) have a business registered in, and Bank Account(s) located in the United States (excluding U.S. territories);
   (ii) ensure that Company and any Individual Users are eligible to receive payments via the Embedded Payroll Service and are not prohibited from making or receiving payments via the Embedded Payroll Services under applicable law;
   (iii) have applied for and received applicable tax agency account ID(s);
   (iv) designate a signatory;
   (v) complete, execute (if applicable) and submit all documents and information Gusto may require for providing the Embedded Payroll Service, including but not limited to Company’s prior payroll information and any required authorizations or tax agency forms, including IRS Form 8655;
   (vi) deposit any applicable tax liabilities incurred prior to enrolling in or initiating the Embedded Payroll Service;
   (vii) submit any payroll tax returns to applicable tax agencies that were due for payroll tax liabilities incurred prior to enrolling in the Embedded Payroll Service;
   (viii) cancel any prior payroll or PEO services and inform applicable prior providers of such cancelation or termination; and
   (ix) comply with any additional instructions, guidelines, or policies (“Payroll Policies”) that Gusto may publish from time to time.

   Gusto reserves the right to suspend or terminate the Embedded Payroll Service or any Payroll Feature without notice in the event that Gusto determines (in Gusto’s sole discretion) or has reason to believe that Company has violated any of the above eligibility requirements.

9. Company's Obligations

   You are solely responsible for actions taken under your account with the Embedded Payroll Service. Any actions taken under your account will be deemed authorized by you, regardless of your knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by an Account Administrator or other authorized representative (“Authorized Representative”), and (ii) actions that an Account Administrator or an Authorized Representative (or anyone that Gusto reasonably believes to be an Account Administrator or an Authorized Representative) directs or instructs Gusto to take on its behalf.

   You are solely responsible for (a) following instructions that Gusto provides to you, either directly or through your Platform Provider, with respect to the Embedded Payroll Service; (b) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Embedded Payroll Service; and (c) maintaining applicable accounts with your Platform Provider.

   You understand and agree to take steps to adequately secure and keep confidential your account, including any information, passwords, or credentials that can be used to access your account. If you suspect that your account, passwords, or credentials have been improperly disclosed, accessed, or otherwise compromised, you must immediately notify your Platform Provider and/or Gusto, as applicable. Gusto reserves the right to prevent access to the Embedded Payroll Service if Gusto has reason to believe that your account has been compromised.

   You are responsible for timely providing your Platform Provider and/or Gusto with the information required for Gusto to perform the Embedded Payroll Service (the “Payroll Information”). You represent and warrant that for any information you share with Gusto or your Platform Provider, you have the authority to share such information. You are also responsible for the accuracy and completeness of information you provide to Gusto and your Platform Provider. Lastly, you are required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify your Platform Provider and/or Gusto of any changes to the information you had previously provided.

   You are responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) distributed to you by Gusto, either directly or through your Platform Provider. You must notify your Platform Provider and/or Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.

   You are obligated to promptly notify your Platform Provider and/or Gusto of any third-party notices that you receive which could affect Gusto’s ability to effectively provide you the Embedded Payroll Service or increase the likelihood that a Claim (as defined below) is brought against you, Gusto, or your Platform Provider in connection with the Embedded Payroll Service, such as but not limited to notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Embedded Payroll Service.

   You agree that, to the fullest extent permitted by law, if you provide Gusto with your login or identity verification credentials and/or authorize Gusto to take actions to your behalf (e.g., clicking the “Submit Payroll” or other buttons; verbally telling a Gusto representative to take an action), such actions will have the same effect as if you provided Gusto with written signature authorizing Gusto to make any electronic payments, filings, or take any other actions as it relates to the Embedded Payroll Service on your behalf.

10. Running Payroll; Bank Account Debiting and Crediting

    By submitting a Payroll Entry, Company authorizes Gusto to debit and/or credit the Company Bank Account in the amounts necessary to (i) fund Company’s requested Payments to Individual Users; (ii) remit any required payroll taxes Payment on Company’s behalf; (iii) remit payments owed relating to garnishments; (iv) pay any debit, correction, or reversal entry initiated, and associated fees and costs; (v) return funds to Company that were collected but unsuccessfully remitted to intended recipients (“Unpaid Funds,” the handling of which is described further in Section 16); (vi) verify the Bank Account via test deposit or debit (if applicable); and (vii) pay any other amount that is owing under this Agreement or in connection with the Embedded Payroll Service (each debit, a “Payroll Debit”). Gusto is not responsible for determining whether Company’s Bank Account has deposit or withdrawal restrictions. These authorizations will remain in effect until and unless Company gives written notice to terminate them. Such written notice of termination must afford Gusto and the Bank reasonable opportunity to act upon such notice.

    Company is solely responsible for following instructions that Gusto or Platform Provider provides to Company with respect to the Services from time to time and timely providing accurate and complete information required for Gusto to perform the Embedded Payroll Services.

    Company acknowledges and understands that all Services will be based on and rely on information provided by or on behalf of Company (including, but not limited to, tax information, Payroll Information, benefits information, and employment information). Company understands and agrees that Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. Company accepts sole responsibility for any liability arising from Company’s failure to correct or update such information.

    Company is responsible for reviewing any reports, filings, information, invoices, documents or materials (collectively, “Materials”) that Gusto or any Third Party Service Provider generates or makes available to Company. Company must promptly notify Gusto of any inaccuracies in the Materials and will allow Gusto the opportunity to correct the Materials.

    Company will promptly notify Gusto of any third-party notices (including, but not limited to, notices from the IRS, other government agencies, or insurance carriers, as applicable) that Company receives which could affect (a)(i) Gusto’s ability to effectively provide the Services or (b)(ii) increase the likelihood that a Claim (as defined below) is brought against Company or Gusto in connection with the Services.

11. Payroll Processing and Payments

    Gusto will process each Payroll Entry in accordance with Gusto’s then-current processing schedule, provided that (i) the required payroll information is received by Gusto no later than Company's applicable cut-off time; and (ii) the ACH and banking partners are open for business on that day (each, a “Business Day”) in order for Gusto to successfully process the Payroll Debit. If Gusto receives required information either after the applicable cut-off time or on a non-Business Day, Gusto will not be responsible for failure to process the Payroll Entry on that day. Instead, Gusto will use reasonable efforts to process the Payroll Entry and Payroll Debit via ACH on the next occurring Business Day.

    A. Payment Methods; Eligibility for Payment Methods
    Gusto may process different payment types through different payment methods. Payments to contractors may be subject to different restrictions or requirements than payroll payments to employees.
    Additional terms may apply to certain payment methods. Gusto reserves the right to change, modify, or terminate any or all of the payment methods available to Company in its sole discretion at any time without notice or liability to Company. Gusto further reserves the right to create or modify eligibility criteria for use of certain payment method(s) for any applicable period of time identified by Gusto, with or without notice to Company and without liability to Company.

    B. Eligibility for Certain Processing Speeds
    Company may qualify for a faster payment processing speed (“Expedited Processing”) if Expedited Process is offered by Company’s Platform Provider. Eligibility for Expedited Processing is determined by Gusto in Gusto’s sole discretion, and may only be available for certain payments (e.g., only Payments to employees) or if Company is eligible for Payment processing via ACH, among other eligibility criteria. If Platform Provider offers Expedited Processing and Gusto determines that Company is eligible for Expedited Processing, Company is then solely responsible for continuing to meet the criteria for continued access to Expedited Processing as described in our <%= external_link_to 'Help Center', 'https://support.gusto.com/' %> or applicable Payroll Policy. Gusto reserves the right to modify the eligibility criteria for Expedited Processing, revoke Company’s access to Expedited Processing, or discontinue any or all of the Expedited Processing speeds at any time with or without notice and without liability to Company.

    C. Other Payment Limits
    Subject to applicable legal requirements, Gusto reserves the right to set any other limits on the amount, method, frequency, or speed of any requested payment(s) at any time in Gusto’s sole discretion, each with or without notice to Company. Reasons for limits may be based on multiple factors, including (but not limited to): (i) Company’s lack of, or limited, payments processing history with Gusto; (ii) past performance or standing in connection with Company’s use of the Embedded Payroll Service, including variations in payment amounts or insufficient funds or other Bank Account errors; (iii) unusual activity, including with respect to payment amount, frequency and other factors; (iv) institutional or market failures or reasonable risk of failures (as determined by Gusto); (v) Company’s participation in a market or industry offering higher risk goods or services (e.g. cannabis); or (vi) Company’s payee(s). Gusto may modify such limits or requirements at any time in Gusto’s sole discretion and with or without notice to Company and without liability to Company.

12. Wire Transfers

    Gusto may require certain Companies to transfer funds for Payments to Gusto via wire transfer. Company understands and acknowledges that certain banks may charge a fee to send or receive a wire transfer. In the event that Gusto requires Company to transfer funds via wire transfer, Company shall be solely responsible for payment of any such fees, whether imposed by Company’s bank or Gusto’s bank, and agrees to reimburse Gusto for any wire transfer fees that Gusto may incur in receiving Company’s funds via wire transfer.

13. Bank Account Funds

    Company must maintain sufficient immediately available funds in Company’s Bank Account(s) to cover all payments, fees, and taxes due (“Amounts Due”) at the time required. For payments processed via ACH, such funds must be available no later than the close of business on the day prior to the debit date for any payment.

    Gusto may request verification of, or require Company to verify and/or provide Gusto evidence of, the balance of available funds in Company’s Bank Account and reserves the right to cancel or refuse to process any payment if Gusto reasonably believes Company has not maintained sufficient Bank Account funds or for any other reason Gusto deems reasonable in its sole discretion, without liability to Company. If (i) any debit from the Bank Account by Gusto fails or is returned due to Company’s failure to maintain insufficient funds, (ii) Gusto reasonably suspects or determines that Company has misrepresented the balance of available funds in Company’s Bank Account, or (iii) Gusto suffers any loss due to Company’s failure to maintain sufficient funds in the Bank Account; then, Gusto may cancel or reverse any corresponding payments processed via direct deposit transactions without liability to Company terminate the Embedded Payroll Services, charge Company a one-time fee or penalty, assess finance charges, recover the amount lost plus any fees and costs of collection from Company, report this information to applicable tax or financial institutions, or pursue any other remedy or remediating action that Gusto deems reasonable as permitted by law. Termination of the Embedded Payroll Service does not relieve Company of the obligation to pay all Amounts Due or of any other obligations that Company may have under applicable law.

    Company understands and acknowledges that Gusto may reject, cancel, or reverse (if applicable) Company’s requested payments if Company fails to maintain sufficient funds in Company’s Bank Account, and Gusto is not liable for any resulting consequences or Claims (including, without limitation, any consequences or Claims arising from unremitted or untimely remitted payroll taxes and/or unpaid or untimely wage or contract payments to Company’s payees).

14. Payroll Reversals and Corrections

    Once a Payroll Entry is submitted, Company may not be able to cancel or amend it. If Company requests to reverse a Payroll Entry or Payroll Debit, Gusto will make a reasonable effort to reverse such Payroll Entry and/or Payroll Debit, to the extent permissible by law or industry regulation. Company understands that Gusto will have no responsibility for the failure of any other person or entity to honor the reversal request. Gusto cannot guarantee that any Payroll Entry or Payroll Debit will be successfully reversed. Company further acknowledges that Gusto will have no obligation to retransmit any returned Payroll Debits. Company agrees to reimburse Platform Provider or Gusto for any costs or expenses incurred in attempting to honor such a reversal request. Company also agrees that, to the extent required under NACHA Rules or the UCC, to obtain a payee’s consent before attempting to reverse a Payroll Entry that was credited to their Bank Account. By initiating a request to reverse a Payroll Entry that was credited to a payee, Company represents and warrants to Gusto that it has already obtained the payee’s consent for the reversal, if such consent is required under the NACHA Rules or the UCC.

15. Payroll Tax Filing; Responsibility for Tax Filings

    By enrolling in the Embedded Payroll Service, Company agrees to appoint Gusto as Company’s reporting agent for tax reporting and filing purposes and, as applicable, authorizes Gusto to instruct Company’s applicable tax agencies to debit Company’s Bank Account for any payroll taxes due. Company is responsible for completing all required tax agency forms and electronic authorizations to confirm such appointments and instructions. In order for Gusto to file tax returns on Company's behalf, (i) Company must process at least one payroll through the Embedded Payroll Service; (ii) the payroll must be paid out to the applicable Individual Users; and (iii) Company must timely provide all requested information to Gusto and/or Platform Provider and ensure that such information is accurate and complete. Gusto will not file Company’s payroll tax returns and will be unable to assist Company in resolution of any payroll tax issues via the Embedded Payroll Service if the above criteria are not satisfied, and Gusto is not responsible for any resulting Claims (as defined below) or consequences. Gusto cannot represent Company in tax matters, and except as specifically provided in this Agreement, Gusto cannot file and pay taxes on Company’s behalf.

    Electronic Filings and Payments: Company may be given the option, or may be required, to pay taxes electronically, or to file tax returns electronically (collectively “Electronic Tax Processing”). Company consents to the disclosure to the applicable tax authority or agency of all information pertaining to Company’s use of Electronic Tax Processing.

    Company Responsibility for Timely Filings: Even though Company has authorized Gusto to file payroll tax returns and make payroll tax payments, ultimately, Company is held solely responsible by taxing authorities for the timely filing of tax returns and the timely payment of payroll taxes. Gusto recommends that all Companies enroll in the U.S. Treasury Department’s electronic tax payment system (“EFTPS”) to monitor Company’s IRS account and ensure that timely tax payments are being made on Company’s behalf. Company may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities may offer similar means to verify tax payments, and Gusto encourages Company to contact Company’s tax counsel, accountant, or the applicable state tax agency directly for details.

    Company Responsibility for Accurate Payroll Information used for Tax Filings: Gusto may, at Gusto’s sole discretion, use commercially reasonable efforts to assist Company in removing certain tax penalties or resolving blocked tax payments that arise due to incorrect or incomplete Payroll Information, but Gusto is not obligated to. In the event that Gusto provides such assistance, Company (i) authorizes Gusto to communicate with and share Payroll Information with the tax agency on Company’s behalf, and (ii) agrees to fully cooperate with Gusto and provide Gusto with all assistance required at Company’s own expense, including but not limited to signing additional authorization forms, timely completing paperwork or providing information requested by Gusto or the applicable tax authority, and/or procuring any “first time abatement” or other goodwill abatements that may be available to Company, as applicable. Company understands that any such assistance from Gusto does not constitute and should not be construed as professional advice or guidance of any kind.

    Company Acknowledgements: Company understands and agrees that Company is solely responsible for ensuring that the calculated payroll and payroll tax amounts properly reflect any industry rules, collective bargaining agreements, and/or laws or regulations that may apply to Company’s business. Company further acknowledges that Gusto is not responsible for and cannot control the acts or omissions of tax agencies, and that tax agencies will review and process tax filings and notices at their own discretion and according to their own processing schedules. Company also accepts final responsibility for any audits or assessments by any tax agency or authority, including (without limitation) any assessments or audits resulting from Company’s failure to provide correct and complete Payroll Information. In the event that Gusto fails to timely remit payroll taxes to the applicable tax agency on Company’s behalf or fails to timely submit a tax filing to the applicable tax agency on Company’s behalf, and in each case the applicable Payments were submitted by Company in compliance with this Agreement (each a “Gusto Error”), Gusto’s sole responsibility and liability shall be limited to the following: (i) Gusto shall remit applicable payroll taxes to the appropriate tax agency; and (ii) Gusto shall reimburse Company or pay directly to the appropriate tax agency the amount of any penalties directly arising from such failure(s). Notwithstanding the foregoing, Company must use prompt and reasonable efforts to mitigate any penalties or losses resulting from such failure(s) and Gusto will not be responsible or liable for any losses, claims, or penalties (including, without limitation, increased tax rates) that may arise from Company’s failure to so mitigate. Company is responsible for promptly notifying Gusto of tax notices, tax bills, changes to tax rates or deposit schedules, or other modifications or communications from applicable tax agencies, and in any case no less than thirty (30) days prior to any applicable response date.

    Gusto and the IRS recommend that Company enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”), to monitor Company’s IRS account and ensure that timely tax payments are being made. Company may enroll in the EFTPS online at https://www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments. Company should contact the appropriate state offices directly for details.

16. Canceling or Reversing Payments

    Subject to Gusto’s obligations under applicable state money transmission laws, Company may cancel a payment if Gusto has not yet processed a direct deposit(s) for such payment. Once a direct deposit(s) has been processed, Company will be unable to cancel or correct the payment, and will only be able to request that Gusto reverse the deposit(s) (a “Reversal”). Gusto reserves the right to impose a fee for, or reject, a Reversal request for any reason without notice or liability to Company. Reversals will only be processed (i) in accordance with the NACHA Rules and (ii) if Company submits a Reversal request to Gusto no more than five (5) business days after the applicable payment was processed. Company understands and agrees that (i) Reversals may be unsuccessful or fail to return some or all of Company’s applicable payment for reasons beyond Gusto’s control, including (without limitation) insufficient funds in the recipient payee’s bank account or bank errors; (ii) Gusto will be unable to reverse payments or recoup funds remitted to Company’s applicable tax agencies through the Embedded Payroll Service; and (iii) Company is solely responsible for recouping or attempting to recoup funds associated with unsuccessful Reversals outside of Gusto.

    The Embedded Payroll Service does not support international ACH transactions. Gusto is not responsible for re-submitting a failed direct deposit if Gusto initiated that direct deposit in compliance with these Payroll Terms. If Company requests a payment via the Embedded Payroll Service on a day when the ACH is closed, Gusto will undertake commercially reasonable efforts to process such payment on the next available business day. Company acknowledges that Company is the Originator of each payment Gusto makes via ACH on Company’s behalf and assumes the responsibilities of Originator under the NACHA Rules. Company will indemnify Gusto as Third Party Sender for any Claims which result from Gusto’s obligations to indemnify any third party under the NACHA Rules.

17. Unpaid Funds

    In the event that Company’s requested direct deposit payment fails and the funds are returned to Gusto (“Unpaid Funds”), Gusto will notify Company and Company authorizes Gusto to credit Company’s Bank Account via direct deposit in order to return such Unpaid Funds to Company. Company is solely responsible for contacting the relevant payee(s), complying with all applicable unclaimed property laws, updating and/or re-submitting Payroll Information in order to re-perform the direct deposit, and/or otherwise resolving the Unpaid Funds. Company expressly releases Gusto from all liability and Claims arising from applicable unclaimed property laws. Gusto will not, and is not obligated to, defend or indemnify Company in the event of an audit, examination, assessment, or other enforcement action related to the Unpaid Funds.

18. Third-Party Services

    Company may be eligible to elect to receive Third Party Services from Third Party Service Providers. Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. Company is solely responsible for, and assumes all risk from, Company’s choice to receive, use or access any Third-Party Service. Company’s use of any Third-Party Service, including any data or personal information Company or its Individual Users may share with or input into such Third-Party Service, is between Company or the Individual User and the owner of such Third-Party Service. If Company chooses to and authorizes Gusto to share Company’s Data with a Third-Party Service (“Shared Customer Data”) then Company (a)(i) represents it has obtained all legal rights to do so, (b)(ii) assumes all risks related to such Shared Customer Data, (c)(iii) acknowledges it is solely responsible for the accuracy of such Shared Customer Data, and (d)(iv) agrees that it is solely responsible for the lawfulness of sharing such Shared Customer Data with the applicable Third-Party Service. Company waives and releases any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Customer Data.

19. Termination; Effect of Termination on Embedded Payroll Service

    The Embedded Payroll Service and this Agreement will continue until terminated by either party. Company acknowledges and understands that termination of the Payroll Service (whether by Company or by Gusto) may not be reversible.

    Company may terminate the Embedded Payroll Service through your Platform Provider or the Embedded Payroll Service. Company understands and agrees that Company’s failure to properly terminate the Embedded Payroll Service may result in Gusto continuing to process and/or file payroll tax filings on Company’s behalf until such termination is complete, that these filings may be incomplete or duplicate filings of other filings for the Company sent outside of Gusto, and that Gusto is not liable for any such result.

    Gusto may terminate Company’s use of the Embedded Payroll Service and this Agreement at any time in its discretion, with or without notice or liability to Company, including if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other users, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.

    Effect of Termination on Payments: Upon termination of the Embedded Payroll Service (by Company or by Gusto), Gusto will continue to process any requested payments as directed by Company prior to termination and Company is responsible for ensuring that all necessary authorizations and consents remain in effect through such payment processing period. Company will be unable to submit additional Payroll Information for the purpose of initiating further payments via the Embedded Payroll Service following termination.

    Effect of Termination on Payroll Tax Filings: Upon termination of the Embedded Payroll Service (whether by Company or by Gusto), Company may be asked to elect whether and how Gusto should make certain tax filings on Company’s behalf associated with such termination (“Final Filings”). Gusto encourages Company to consult with an accountant or tax professional in making such elections for the Final Filings, and Company is solely responsible for the consequences of such elections. For the avoidance of doubt, Gusto cannot assist in winding down Company’s business or in closing Company’s applicable tax agency accounts.

    If Company fails to promptly provide Gusto with Company’s elections regarding those Final Filings, then Company authorizes Gusto to make or not make such Final Filings in Gusto’s sole discretion. Gusto is not responsible or liable for (i) any consequences or Claims arising (directly or indirectly) from Gusto’s filing of, or failure to file, such Final Filings; or (ii) any Resulting Errors, or any consequences or Claims arising from any Resulting Errors, in the Final Filings. Company further acknowledges that in some cases, Gusto may not be able to make Final Filings on Company’s behalf following termination of the Embedded Payroll Service, and Company understands and agrees that Company is solely responsible for compliance with applicable tax law and payment of applicable payroll taxes.

20. No Legal, Professional, or Fiduciary Guarantees

    Company understands and agrees that (i) Gusto is not acting in a fiduciary capacity for Company or Company’s business in performing the Payroll Services; (ii) any information that Gusto or Gusto’s employees, representatives or agents may provide in connection with the Payroll Service is for informational purposes only and should not be construed as legal, tax, accounting, or other professional advice of any kind; and (iii) nothing in the Payroll Service should be construed to create any type of employer relationship or joint employment relationship between Gusto and Company’s Individual Users for any purpose.

21. Investment of Payroll Funds

    Amounts received by Gusto for payroll direct deposits and payroll taxes (“Payroll Funds”) will be held by Gusto in accounts at Gusto’s financial institution partners (collectively, the “Payroll Account”) until those payments are made to the applicable payees. Gusto may invest the Payroll Funds in accordance with Gusto’s applicable investment guidelines and consistent with state money transmission laws (as applicable). Company does not have any ownership interest (either legal or beneficial) in these investments and will not receive any interest or other return on funds held in the Payroll Account. Gusto owns all income, interest, or return from funds in the Payroll Account. Gusto will indemnify Company against any loss of the principal amount of the Payroll Funds caused by Gusto while holding the funds in the Payroll Account.

22. Acceptable Use Policy

    By using the Embedded Payroll Services, Company agrees to be bound by Gusto’s Acceptable Use Policy located at https://gusto.com/legal/acceptable-use. Company’s violation of the Acceptable Use Policy will be considered a breach of this Agreement.

23. E-Signatures

    Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that Company uses the E-Sign Service, Company is expressly (i) affirming that it is able to access and view the document (the “Document”) it is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document. Using the E-Sign Service to electronically sign Documents is optional and Company can choose to manually sign Documents if preferred. If Company would like to manually sign a Document, Company should (a) inform the party that sent the Document of your decision to manually sign such Document; (b) make sure that Company does not electronically sign the Document via the E-Sign Service; and (c) work with the sender of the Document for purposes of sending, uploading, and/or recordkeeping.

    Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents. Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS YOUR RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.

24. Availability of the Embedded Payroll Service

    Gusto makes no representations or warranties to Company about the Embedded Payroll Service, including but not limited to uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Embedded Payroll Service may be inaccessible and unavailable, with or without notice.

25. Consent to Receive Messages About Your Account

    Gusto may send Company or Individual Users (i) email messages; and (ii) text messages related to the Embedded Payroll Service, to the extent consent has been given to receive such messages from Gusto, either directly or through Platform Provider. Message frequency may vary. Standard message and data rates may apply. Company may opt out of receiving (a) promotional email messages from Gusto by using the unsubscribe link located at the bottom of Gusto promotional emails, contacting Gusto as described below, or visiting https://go.gusto.com/pls-dont-leave-us.html; and/or (b) text messages from Gusto, reply HELP for help or STOP to cancel.

26. Gusto Intellectual Property

    The Embedded Payroll Service, including the text, graphics, images, photographs, videos, works of authorship, and other content made available through the Embedded Payroll Service (“Intellectual Property”) is owned by Gusto or its licensors and protected under applicable intellectual property laws. Except as explicitly stated in this Agreement, Intellectual Property is reserved by Gusto or its licensors. Subject to Company’s compliance with this Agreement, Gusto grants Company a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Embedded Payroll Service as permitted under this Agreement. Company understands and agrees that (i) removing, altering, obscuring or otherwise infringing upon Intellectual Property or (ii) using the Embedded Payroll Service other than as specifically authorized herein, is strictly prohibited and a violation of Gusto and its licensors’ Intellectual Property rights.

27. Warranty Disclaimers

    TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE EMBEDDED PAYROLL SERVICE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO DOES NOT WARRANT THAT THE EMBEDDED PAYROLL SERVICE WILL (I) MEET COMPANY’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.

    If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by Company, an Account Administrator, or any Individual User, or anyone Gusto reasonably believes to be any of the foregoing parties (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.

28. Indemnity

    Company agrees to indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against damages, losses, and expenses arising out of any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of (i) Company’s (a) access to, use of, or reliance on the Embedded Payroll Service; (b) violation or alleged violation of this Agreement; (c) violation or alleged violation of any applicable law, rule, or regulation, including but not limited to NACHA rules, and labor, employment, and tax laws; (d) violation or alleged violation of any third party right, including but not limited to rights of privacy, publicity, intellectual property, and any other rights afforded to third parties by law, rule, or regulation; (e) gross negligence, fraudulent activity, or willful misconduct; and (f) failure to properly follow Gusto’s instructions with respect to the Embedded Payroll Service; and (ii) any Indemnified Party’s (a) use of or reliance on information provided to Gusto by or on behalf of Company; (b) actions in connection with the Embedded Payroll Service at the request or instruction of anyone that Indemnified Parties reasonably believe to be Company or anyone acting with authority on behalf of Company (each such action or activity, a “Requested Action”); and (c) use of or reliance on information or data resulting from such Requested Actions.

29. Limitation of Gusto's Liability

    Gusto is not responsible or liable for consequences or Claims related to (i) Requested Actions; (ii) Resulting Errors; (iii) failure to timely, accurately, or satisfactorily follow instructions or provide Gusto with information requested in order for Gusto to provide Company with the Embedded Payroll Service; (iv) Company’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to NACHA rules, and labor, employment, and tax laws; (v) unauthorized third-party actions taken on Company’s account; (vi) Company’s negligence; (vii) any Claims that could have reasonably been avoided or mitigated through reasonable efforts; and (viii) Platform Provider’s receipt, protection, processing, or sharing of Company’s information.

    NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE EMBEDDED PAYROLL SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

    TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY TO COMPANY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE EMBEDDED PAYROLL SERVICE EXCEED $500. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND COMPANY.

30. Term; Termination; Suspension

    The Embedded Payroll Service and this Agreement will continue until terminated by either party. Company may terminate the Embedded Payroll Service through your Platform Provider or the Embedded Payroll Service.

    Gusto may terminate Company’s use of the Embedded Payroll Service and this Agreement at any time in its discretion, including if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other users, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.

    Effect of Termination: Upon termination of the Services, and except as otherwise stated herein, Company’s rights to access and use Services will automatically terminate. Company’s account will remain accessible in a read only capacity, subject to compliance with the Terms.

    The termination of any of the Services or this Agreement will not affect Company’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Any section of this Agreement which by its nature should survive termination will survive, including without limitation all applicable payment obligations, privacy rights and obligations of Gusto and Company under Gusto’s Privacy Policy, Gusto’s responsibilities to comply with federal anti-money laundering regulation, use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability.

31. Changes to the Agreement or the Embedded Payroll Service

    Gusto may modify this Agreement at any time, in Gusto’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that Company reviews each modified version of the Agreement as Company’s continued use of Services after such changes are posted constitutes Company’s agreement to be bound by the modified Agreement. If Company does not agree to be bound by the modified Agreement, then Company may not continue to use the Services. Because the Services evolve over time, Gusto may change or discontinue all or any part of the Services at any time and without notice, and without liability to Company, at Gusto’s sole discretion.

32. Governing Law

    This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.

33. Arbitration

    PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 35.D BELOW.

    A. Informal Dispute Resolution. As used in this Section 35, “Dispute” includes any past, present, or future dispute, claim, or controversy relating to or arising out of these Terms, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 35 or the Terms. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. Similarly, Gusto will undertake reasonable efforts to contact you to resolve any Dispute we may have informally before taking any formal action. If a Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate an arbitration proceeding for Disputes as described below.

    B. Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 35 (the “Arbitration Provision”), unless you opt out as provided in Section 35.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Disputes include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise.

    C. Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to legal-opt-outs@gusto.com, within thirty (30) days of the date of your electronic acceptance of these Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Companies, within thirty (30) days of notice of modifications to these Terms. For your convenience we have provided a form Arbitration Opt-Out Notice here. Please complete and email back the completed form, including all required fields. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 35.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).

    D. Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 35 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.

    E. WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 35.B

    F. NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
    
    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 35.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.

    G. Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator.

    H. A single arbitrator will be mutually selected by Gusto and Company and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Company cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS rules that satisfies the Arbitrator Requirements.
    
    Notwithstanding any language to the contrary in this Section 35.G, if a party seeks injunctive relief that would significantly impact other Companies as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 35.G shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms.

    I. Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

    J. Arbitration Fees.If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules.

    K. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.

    L. Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 35.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 35.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 35.D.

34. Force Majeure

    Gusto is not responsible or liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Company.

    Additionally, Company acknowledges that the Embedded Payroll Service relies on third-party technology and services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, Company’s use of or access to the Embedded Payroll Service. Likewise, Gusto cannot guarantee that any information or data hosted on a third-party server will remain secure.

35. Entire Agreement

    This Agreement constitutes the entire agreement between Company and Gusto regarding the Embedded Payroll Service and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter.

36. Assignment

    Company may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Company to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.

37. Notices

    Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; (ii) by posting to the Embedded Payroll Service; (iii) through your Platform Provider. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Embedded Payroll Service, either by Gusto or Platform Provider, the date of such posting will be deemed the date that notice is given.

38. No Waiver

    Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto.

39. Enforcement

    If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

40. Electronic Acceptance

    This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.

41. Contact Information

    If you have any questions about the Embedded Payroll Service, you may contact Gusto at gep-support@gusto.com or your Platform Provider directly. If you have any questions about this Agreement, you may contact Gusto at gep-support@gusto.com. Gusto, the provider of the Embedded Payroll Service, is located at 525 20th Street San Francisco, CA 94107. If you are a California resident, you may report complaints regarding the Embedded Payroll Service by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:

    Department of Consumer Affairs
    Consumer Information Division
    1625 North Market Blvd., Suite N 112
    Sacramento, CA 95834
    Phone Number: (800) 952-5210